Listen up sanes: the intersection of policing and healthcare is nothing new

Activism and the law, Apr 10th

On March 25th the Coronavirus Act 2020 received Royal Assent and became law. The contents of this ‘emergency bill’ are wide in scope: they cover increased police powers, changes to health and social care legislation, postponement of elections, changes in burial procedure and changes in statutory sick pay, amongst other measures. The next day Health Secretary Matt Hancock brought The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 into force, ordering businesses to close and placing restrictions on movement (summary here).

At the time of writing (7th April), not all parts of the Coronavirus Act have been invoked: for example, changes in mental health legislation are currently in place in Northern Ireland but not in England, Wales or Scotland.

Legal support and police monitoring groups have rightly criticised the contents of the Coronavirus Act and Health Protection Regulations and the way these are being enforced by cops. There has been some (although not enough) discussion of the way these new powers will continue to disproportionately target people of colour as used by the deeply racist institution of policing of behalf of a deeply racist state. This analysis, criticism and recording is essential.

1. This legislation has not come out of nowhere – healthcare and policing have always been linked.

Schedule 21 of the Coronavirus Act gives police, immigration officers and ‘public health officials’ (most healthcare workers) the power to detain people ‘suspected of being potentially infectious’, transport them to somewhere they can be ‘screened and assessed’, keep them there for 24 hours and place further restrictions on them during or after assessment, such as requiring them to give biological samples, provide documents or isolate in a designated place for a specified period of time (up to 14 days in most circumstances). Of course, these powers are nothing to be welcomed, and the use of detention in healthcare should be resisted. But this Schedule is not ‘new’, ‘unprecedented’ or ‘shocking’ (as it has variously been described on the Left) – it is in many ways a continuation of powers which are already used regularly against Mad and Disabled people.

Section 136 of the Mental Health Act 1983 allows cops to detain ‘mentally disordered persons’ (defined by the NHS as being ‘mentally ill people, people with learning disabilities and people with personality disorders’) for 24 hours in order to transport them to a ‘safe place’, which can, in exceptional circumstances, be a cell in a police station. The police can and do use high levels of violence to make people comply with this detention, and once people reach hospitals they can be further detained for assessment and/or treatment against their will by doctors or a mental health nurse under other sections of the MHA. This process of ‘sectioning’ is often traumatic, and once again disproportionately targets people seen as ‘other’ by a white supremacist state – NHS records from 2018-19 show that Black people are over 4 times as likely to be detained under the MHA as white people, and of the 3504 recorded detentions of people experiencing distress under s136 in this time period (the NHS itself notes that the real number is higher, as many centres did not submit data), those of ‘Mixed’ ethnicity were most likely to be detained, followed by Black people. It’s also worth noting that there are no lower age limits on detention under the MHA, and no provisions that specifically deal with young people – the 2018-19 NHS data records that at least 1241 people aged 17 or under were detained using these powers, and 433 of these people were aged 15 or under.

It is not okay to ignore the impacts of the MHA or the way in which these powers are racialised. The experiences of Mad and Disabled people who have been detained under this legislation, as well as Mad and Disabled people who have been arrested for other offences and then subjected to mental health-based assessments and/or prosecutions are not ‘niche’ or ‘unimportant’ – they are vital to understanding the way policing already interacts with healthcare and the reality of how Coronavirus-related powers could be weaponised. It is also not okay to draw false distinctions between physical and mental health, or to suggest that detention ‘protects’ Mad people, when we know that this is not the case at all – policing has violently targeted Mad people and everyone else who does not ‘conform’ since its beginnings.

‘One day fairly soon’… since the start of policing… and the MHA was 37 years ago… hm…

2. Criminalising ‘illness’ is, equally, nothing new.

Much has also been made of the way these powers seek to blur the lines between healthcare and law enforcement, effectively criminalising the virus and the state of being infected. Once again, this isn’t new – throughout history (see HIV/AIDS, for example) and into the present the state has sought to control illness, particularly illness which disproportionately impacts marginalised people, through legislation and law enforcement.

Mad people are often criminalised, with a state response to distress that seeks to provide punishment through the court system whilst appropriate support services are not available or accessible (examples here and here). The total lack of support for Mad people and people experiencing distress is also intrinsically related to the public health emergency that is the existence of prisons – research from the Prison Reform Trust shows that 26% of women and 16% of men in prison said they had received treatment for a mental health problem in the year before custody and 25% of women and 15% of men reported symptoms that are labelled by psychiatrists as being indicative of psychosis (the rate in the non-prison population is around 4%). Investigation by the Prison and Probation Ombudsman also found that nearly one in five of people diagnosed with a mental health problem received no mental healthcare during their time in prison. It is impossible to talk about policing and the criminal ‘justice’ system without talking about Madness and failures in mental healthcare – who does the system target, who does the system protect?

3. This is no time to leave Mad people behind.

Mad and Disabled people’s experiences of detention for ‘medical’ reasons can help us all to understand how current legislation may work in practice, but it’s also worth noting that the Coronavirus Act itself contains changes to the Mental Health Act and the Care Act 2014 that will have profound impacts on millions of people. At the time of writing, 7th April, these changes have not yet been invoked in England and Wales, but if/when they are, they are scheduled to remain in place for 2 years.

MHA changes will mean that only 1 doctor is needed to authorise detention in all circumstances where 2 are currently required, and upper time limits for sections have been increased or, in the case of s35/s36, which cover people remanded to hospital by a court, removed completely. Mad people are even more worried than usual around the welfare of those of us who come into contact with the cops: the upper time limit on s135/s136 (as discussed above) will be extended from 24hrs plus an additional 12hrs following authorisation to 36hrs plus the additional 12 once authorised. Many designated ‘places of safety’ (which were never particularly safe to begin with) have closed and most A&E departments are running at capacity, meaning that potentially more people experiencing distress or who are in crisis could be held in police cells, where there is a high risk of experiencing potentially lethal violence from cops.

Changes to the Care Act remove the requirement for local authorities to assess people’s needs and end the necessity for local authorities to provide social care support for Disabled and Mad people and carers, other than in cases where the human rights of the person in question would be breached – and as the campaign group Disabled People Against Cuts (DPAC) notes, ‘The bill poses a serious risk to the lives of many disabled people, especially those of us who need social care support… we know from experience that in order for human rights to be breached in social care context the situation has to be very critical or severe.’

All these changes come about during a time in which it is already more difficult for Mad and Disabled people to access support due to the nature of the lockdown and social distancing measures. Many people have found their usual health and support services (if they were even able to access them in the first place) suddenly stripped back or removed, and informal networks of care that people have built up are now much harder to access. Stress around health, income, food, housing, care needs and the health of loved ones, as well as increased isolation and much less practical support exacerbate the public health emergency that is being caused by COVID-19. In addition to this, serious concerns are being raised around the welfare of people incarcerated and institutionalised, in psychiatric wards, prisons and immigration detention centres. This should be all extremely worrying to everyone, especially civil liberties and human rights groups on the Left.

4. Legal support and police monitoring groups must finally pay attention to Mad and Disabled people.

We were Mad before the pandemic, we will continue to be Mad through it and we’ll still be Mad afterwards. We will be impacted by legislation in response to COVID-19 and we have always been policed for our inability to be ‘normal’.

So listen up, sanes – the NHS is political, cops in healthcare is nothing new, and when the pandemic is over and we’re all fighting for these measures to be repealed, let’s use that energy to fully restructure the way we think about ‘safety’ in terms of health, policing and incarceration. We must demand a better, more caring and more accessible present and future.

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